Appeal from the Order of the Commonwealth Court at 283 C.D. 1981, No. 67 M.D. Appeal Dkt. 1984, 85 Pa. Comwlth. 240,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
This case does not concern the right to an abortion. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), reh. den. 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973), sweeping aside previous prohibitions, the Supreme Court bottomed the right to expel an unwanted pregnancy on the choice of the private uses of one's body. The question here, is whether, because this Commonwealth provides funds to indigent women for a safe delivery, they are therefore equally obliged to fund an abortion.
This dispute had as its genesis the enactment of a provision of the Public Welfare Code which provided that:
Since it is the public policy of the Commonwealth to favor childbirth over abortion, no Commonwealth funds and no Federal funds which are appropriated by the Commonwealth shall be expended by any State or local government agency for the performance of abortion: Provided, that nothing in this act shall be construed to deny the use of funds where a physician has certified in writing that the life of the mother would be endangered Page 297} if the fetus were carried to the full term or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a law enforcement agency or public health service. Nothing contained in this section shall be interpreted to restrict or limit in any way, appropriations, made by the Commonwealth or a local governmental agency to hospitals for their maintenance and operation, or, for reimbursement to hospitals for services rendered which are not for the performance of abortions.
62 P.S. § 453.*fn1 This provision, also referred to as Act 239, was to become effective on February 15, 1981. However, on February 12, 1981, appellants*fn2 filed an original action in the Commonwealth Court, challenging it on state constitutional grounds.*fn3 On August 10, 1981, the Commonwealth Court issued a preliminary injunction against enforcement of this Act. On appeal we affirmed this preliminary relief. Fischer v. Department of Public Welfare, 497 Pa. 267, 439 A.2d 1172 (1982).
Upon its return to the Commonwealth Court appellees*fn4 filed preliminary objections in the nature of a demurrer. These objections were overruled,*fn5 and the Commonwealth's petition for permission to appeal was denied by this Court. The case was again returned to the Commonwealth Court and on August 6, 1982, the appellees filed their Answer. Attached thereto was New Matter wherein they asserted that the appellant's challenge had become moot as a result of an intervening repeal of Act 239 by the General Assembly. That repeal was accomplished by the enactment of the
Abortion Control Act of 1982,*fn6 18 Pa.C.S. § 3201 et seq., which modified the language of Act 239 to provide as follows:
PUBLIC FUNDS. -- No Commonwealth funds and no Federal funds which are appropriated by the Commonwealth shall be expended by any state or local government agency for the performance of abortion, except:
(1) When abortion is necessary to avert the death of the mother on certification by a physician. When such physician will perform the abortion or has a pecuniary or propriety interest in the abortion there shall be a separate certification from a physician who has no such interest.
(2) When abortion is performed in the case of pregnancy caused by rape which has been reported within 72 hours of the rape to a law enforcement agency having the requisite jurisdiction and has been personally reported by the victim or her agent.
(3) When abortion is performed in the case of pregnancy caused by incest which has been reported within 72 hours from the date when the female first learns she is pregnant and she has named the other party to the incestuous act. Such information shall be turned over by the department to a law enforcement agency.
18 Pa.C.S. § 3215(c). This Act was to take effect in December, 1982. However, prior to its effective date appellants filed an amended petition for review challenging its provisions.*fn7 The Commonwealth again filed an Answer and New Matter, to which appellants responded. Thereafter, the Commonwealth Court granted appellant's motion for class certification, and the matter proceeded.
On February 1, 1984, the parties filed a stipulation of uncontested facts, and on February 7 and 8, 1984, the Honorable John A. MacPhail, sitting as chancellor, heard additional testimony.
On March 9, 1984, Judge MacPhail issued an adjudication wherein he found both statutes violated the Pennsylvania Constitution, and that the rape and incest reporting provisions violated federal and state rights to privacy. He concurrently issued a decree nisi permanently enjoining the Commonwealth from enforcing the challenged provisions. Fischer v. Department of Public Welfare, 85 Pa. Commw. 215, 482 A.2d 1137 (1984).
The Commonwealth excepted to this decree, and argument was held before the Commonwealth Court, en banc. That court, by a five to two margin, rejected Judge MacPhail's conclusions that the restriction of abortion funding to life endangering situations was unconstitutional. The court did however affirm Judge MacPhail's conclusion that the rape and incest reporting provisions offended constitutional safeguards, and the Commonwealth was permanently enjoined from enforcing them.*fn8 Fischer v. Department of Public Welfare, 85 Pa. Commw. 240, 482 A.2d 1148 (1984).
Appellants have appealed from the decision of the en banc panel. In their appeal they raise the following issues: whether the funding restriction violates the equal protection guarantees contained in Article I § 1 and Article III § 32 of the Pennsylvania Constitution; whether the funding restriction violates the nondiscriminatory provision contained in Article I § 26 of the Pennsylvania Constitution; and whether the funding restriction violates the Commonwealth Equal Rights Amendment contained in Article I § 28 of the Pennsylvania Constitution. For the following reasons we reject appellant's arguments and affirm the final decree of the Commonwealth Court.
Although appellants have not raised any federal claims we must nonetheless begin our analysis with a discussion of the relevant federal constitutional authorities. One of the nuances of living in this federal system is that individual states are free to make certain choices, so long as they do not transgress certain constitutional parameters, as those parameters have been defined by the United States Supreme Court. See Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980).
In Roe v. Wade, supra, the Supreme Court drew the parameters within which all states must operate as regards abortion. The Court held that statutes which made criminal the performance or the obtainment of an abortion unduly burdened a woman's right to choose, and thus constituted an infringement on a woman's right to privacy. At the same time however, the Court acknowledged that states do have an interest in the potential life which may be destroyed; and that the states' interest can justify certain restrictions on the performance of abortions. Id., 410 U.S. at 162, 93 S.Ct. at 731.
Subsequently, the Court recognized that the states' interest in potential life is a significant one "existing throughout the course of the woman's pregnancy";*fn9 and that states may take certain steps "to further this unquestionably strong and legitimate interest in encouraging normal childbirth." Beal v. Doe, 432 U.S. 438, 446, 97 S.Ct. 2366, 2371-72, 53 L.Ed.2d 464 (1976). The Court later held that there was no constitutional requirement for a state to "accord equal treatment to both abortion and childbirth," Maher v. Roe, 432 U.S. 464, 470, 97 S.Ct. 2376, 2380, 53 L.Ed.2d 484 (1977); and that it was not unconstitutional for a state to pay for the expenses of childbirth while at the
same time refusing to pay for nontherapeutic abortions. Id.
In Maher, the Court explained the limits to the right which they recognized in Roe v. Wade;
Roe did not declare an unqualified "constitutional right to an abortion" . . . Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate the pregnancy. It implies no limitation on the authority of the State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.
Id. at 473-474, 97 S.Ct. at 2382 (emphasis added).
Thereafter, in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), the Court held that Congress, in pursuance of a policy to encourage childbirth, may limit the funding of abortions to life threatening situations; and that such a restriction does not contravene the constitutional right of those indigent women who seek abortions in less than life threatening situations. The Court also held that a state may enact a statute limiting medically necessary abortion funding without offending the Constitution. Williams v. Zbaraz, 448 U.S. 358, 100 S.Ct. 2694, 65 L.Ed.2d 831 (1980).
In Harris, supra, the Court addressed the constitutional validity of what has become known as the "Hyde Amendment," which provided:
[N]one of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest when such rape or incest has been reported promptly to a ...